Through the Kenyatta Case, ICC demonstrated its limits in front of great interests and corruption. The analysis of this defeat for the protection of human rights.
Mark Kersten, a researcher on international relations at LSE, sustains that the stronger is the power that the Court investigates on, the stronger base of evidence and witnesses should be needed for more efficient investigations. According to such theory, the Kenyatta case is a precedent that the International Criminal Court should look at in the future to allocate in a more efficient way the budget aimed to build robust investigations. Especially when the resulting evidences were supposed to condemn the first President ever appeared in front of the ICC.
Uhuru Kenyatta, the current President of Kenya and leader of the PNU had been accused by the ICC to have violated 5 articles of the Rome Statute referred to the wider range of crimes against humanity within the 2007-2008 post-election violence, by carrying out a widespread and systematic attack against the non-Kikuyu population, causing the murder of 1,100 people and forcing 650,000 others from their homes.
Right after the approval of the investigations, the obscure side of the Kenyatta case took shape, namely when some relevant factors probably hindered the fair performance of the evidence gathering and the verdict in the trial. Indeed, many witnesses and victims who were participating to the process mysteriously withdrew their accuses, while the Kenyan government was not providing the necessary bank and telephone records to the OTP, as accused by the Gambian Prosecutor Bensouda. This resulted in a progressive insufficiency of allegations that Kenyatta’s defense has used to acquit his client, also benefitting of the reluctance expressed by many members of the Assembly of the States Parties, whose diplomatic dialogues with Kenya have been aimed not to jeopardize their economic businesses in East Africa.
In a nutshell, this lack of evidence and political support forced the Prosecutor to make this case collapse, with the result not to give a name to the instigators and authors of that huge massacre. But there is way more to worry about: undoubtedly such judgment of acquittal might create a dangerous precedent in the general law, a big lack in the Statute’s purposes to punish the most serious crimes of concern to the international community and a violation of the Constitution of Kenya, according to which Kenyatta was supposed to be deprived of his immunity and subject to impeachment by the National Assembly. But could the Office of the Prosecutor do more? Referring to what was asserted in the beginning, many lacks in the investigating system were denounced, such as insufficient budget and no frequent use of local experts, resulting in a more difficult cooperation from the local politics. To this regard it is definitely worth to add that the matter of the allocation of thebudget is one of the functions exercised by the ASP, whose power extension looks then reviewable, at least in an extent which ensures that its activity will not be any longer blind in front of the true purposes of the Rome Statute.